Bradley Yates v Infoform Pty Ltd
[2022] FWC 1474
•10 JUNE 2022
| [2022] FWC 1474 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Bradley Yates
v
Infoform Pty Ltd
(C2022/596)
| DEPUTY PRESIDENT LAKE | BRISBANE, 10 JUNE 2022 |
Application to deal with contravention involving dismissal – application made outside of statutory timeframe – extension of time.
On 18 January 2022, Mr Bradley Yates (the Applicant) lodged an application with the Fair Work Commission (the Commission/the FWC) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to his dismissal by Infoform Pty Ltd (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Melbourne. The Applicant’s employment commenced with the Respondent on 27 October 2020 and it is contentious as to when his employment was terminated.
By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act.
The Respondent states that the Applicant was dismissed on 3 December 2022, making his application late. The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.
On 9 May 2022, I convened a hearing by telephone to determine whether to allow the Applicant an additional period within which to lodge his application.
Consideration of whether a further period should be granted
As noted above, s.366 of the Act requires that a general protections application under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2) of the Act.
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant.[1] The Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd extensively canvassed the meaning of ‘exceptional circumstances’, concluding:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.[2]
In order for the Applicant’s general protection application to proceed, it is necessary for him to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act. I now turn to address the particular matters to which regard must be had.
Given that both parties were unrepresented at the Hearing, I specifically asked each party to address each of the factors set out in s.366(2) of the Act.
The Applicant’s submissions may be summarised as follows:
(a)On 23 December 2021 on or around 6.00pm, the Applicant was given a termination of employment letter by his wife, the office manager of the Respondent.
(b)On 24 December 2021 on or around 3.30pm, the Applicant sought to clarify his dismissal.
(c)Following the investigation, the Applicant called the Fair Work Commission to lodge his application yet was unable to as the Commission had closed for Christmas.
(d)The Applicant had to wait for the Commission to reopen to figure out the next steps of his application.
(e)On 13 January 2022 at 10.38am, the Applicant posted his application, evidenced by an Australian Post Registered Post Lodgement Receipt.
The Respondent’s submissions may be summarised as follows:
(a)The Applicant was dismissed on 3 December 2021.
(b)There are no exceptional circumstances that warrant an extension of time.
Regarding the date of dismissal, I find that the Applicant was dismissed on 23 December 2021. This was the date he received notice of his dismissal, prior to this he was still under the impression he was employed.
Accepting that termination of employment occurred on 23 December 2021 results in the application needing to be submitted on or before 13 January 2022.
Therefore, I must consider whether an extension should be granted by looking at the elements under s.366(2) of the Act.
Consideration
Section 366(2)(a) – The reason for the delay
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
The Applicant contends that his application was lodged on 13 January 2022 as evidenced by the Registered Post Lodgement Receipt. However, the application is only deemed lodged when it is received by the Commission.[6] As the application was received on 18 January 2022, this is the day of lodgement and he is 5 days outside the statutory time limit.
The Applicant’s application was made 26 days after his dismissal. The Applicant stated that he had to seek clarification as to his dismissal and could not submit his application with the Commission as it was closed for the Christmas Holiday.
The Applicant was informed of his dismissal two days before Christmas. Being dismissed during this period would have added stress to an already stressful season. However, Christmas is an annual occurrence that is not exceptional in nature. The Commission is closed for Christmas, New Year’s Day, and the Public Service Holiday the day after New Year’s Day. However, the Commission is open during the other days of the season. Therefore, the Applicant had another 18 days to file his application.
The Applicant also stated that he wanted to wait for the Commission to reopen to figure out the next steps of his application. I do not accept this as the Commission supplies resources through their website that explain the process in detail and give applicants the ability to file their application online.
I do not consider any of these exceptional circumstances which warrant me exercising my discretion to allow an extension of time.
Therefore, the absence of an acceptable or reasonable explanation for the delay in lodging a completed application weights strongly against the Applicant’s request for an extension of time.
Section 366(2)(b) - Action taken to dispute the dismissal
An action taken by an employee to content the dismissal, other than lodging an application, can be treated as favouring the granting of an extension of time.[7]
The Applicant demonstrated, through correspondence tendered and discussed above, that during the 21 days he sought clarification regarding his final termination package. However, on review of the evidence before me, I cannot identify that the Applicant took any steps to contest the dismissal.
Accordingly, I do not accept that the Applicant took steps to contest his dismissal, and only took steps to negotiate a termination package. This consideration weighs against the Applicant’s request for an extension of time.
Section 366(2)(c) - Prejudice to the employer
In considering this factor, the employer must produce evidence to demonstrate prejudice. It is then a matter for the Applicant to show the facts do not amount to prejudice.[8]
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice.
The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[9] I consider this factor to be neutral.
Section 366(2)(d) - Merits of the Application
In Kornicki v Telstra-Network Technology Group,[10] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
Without a proper assessment of all the evidence in this matter, this is a neutral determination.
Section 366(2)(e) - Fairness as between the Applicant and other persons in a like position
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[11]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist in this matter.
Pursuant to section 366(2) of the Act, the extension of time is denied, and the section 365 application is dismissed. I Order accordingly.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[5] [2018] FWCFB 901.
[6] Branden Gorman v Lyndon Stevens/Statewide Alignments [2019] FWC 1918 at 3, [12].
[7] Brodie-Hanns v. MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[8] Cowie v State Electricity Commission of Victoria [1964] VR 788.
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[11] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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